JUDGMENT ORDER K.S. Jhaveri, J. - By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the department. Counsel for the appellant pointed out that the appellant has preferred this appeal against the finding which has been arrived at against him. 2. This Court while admitting the matter framed the following substantial questions of law : "(i) Whether in the facts and circumstances of the case, learned Tribunal was right in law in allowing the appeal of Revenue with regard to imposition of interest under section 11AB of the Act, especially when it is an admitted fact that the liability to pay the disputed duty arose on 18-12-2000 i.e. prior to the day when provisions of Section 11AB were not in force in terms of Section 11AB(2) of the Central Excise Act, 1944? (ii) Whether in the facts and circumstances of the case, and as per settled position of law, the learned Tribunal was right in law in imposing equivalent penalty under section 11AC of the Act especially when the demand of duty to the tune of Rs. 1,13,825 were deposited prior to issuance of show cause notice and proviso to Section 11AC grants an abatement of 75% if the duty is deposited within 30 days of receipt of order in original? (iii) Whether in the facts and circumstances of the case the findings arrived at by the learned Tribunal will be termed perverse and violative of principles of natural justice as it has not considered the fact of marketability vis-a-vis Section 2(d) of the Act and the removal of goods under cover of challan?" 3. Counsel for the appellant has taken us to the order of the Tribunal which reads as under : - "The contention of the counsel that the seized goods from the auto rickshaw had no marketability and as such no duty could be charged, cannot be accepted as it was never pleaded before the authorities below. Moreover, it is difficult to accept that the seized adopters and rims have no market value. No evidence has also been produced by the assessee even to substantiate this plea. Moreover, it is difficult to accept that the seized adopters and rims have no market value. No evidence has also been produced by the assessee even to substantiate this plea. The ratio of the law laid down in Union of India v. Sornic Electrochem (P) Ltd. - 2002 (145) E.L.T. 274 (S.C.) referred to by the counsel, wherein the criteria for determination of marketability of the goods has been laid down by the Apex Court is not attracted to the case in hand, rather it goes against the assessee/respondents as it has been observed by the Apex Court that essence of marketability is neither form nor in shape or condition of the article, but the commercial identity of the article known to the market." 4. It is contended that the findings of the Tribunal is contrary to record inasmuch as right from beginning the claim which has been made by the present appellant reads as under : - "7. The name and addresses and Reg. No. if any, of the person/undertaking the above manufacture/process/operation. (ii) M/s. India International, Near Char Darwaja, Khander Ka Rasta, Gangapole, Jaipur Description with Chapter Heading Nos. of the resultant goods after process. Further the goods after process are able to duty. Automobile Headlights and parts 8512.00 Dutiable for Home Consumption Under bond for Exports. 10. Whether the waste or scrap, if any arising during the above manufacture/process/operation should be returned to the factory or not. Yes, CRCA sheet scrap will be returned." 5. He has also relied upon the defence taken before the authority which reads as under : - "(iv) It was submitted that the statement of Shri S.B.S. Rathore was misleading. The fact is that the adopters are not been cleared in the market. These are only used as input in the manufacture of final product. It was submitted that it is not correct to say that the entire quantity received from the job worker was properly accounted for in the records and entire verification can also be made still now to arrive at the factual position. The contention of Shri Rathore, that the entire quantity has been removed clandestinely without payment of duty is not correct. As earlier stated, the adopter manufactured by job worker are not saleable in the local market. These are only used in the manufacturing of head lights which are exported. 6. The contention of Shri Rathore, that the entire quantity has been removed clandestinely without payment of duty is not correct. As earlier stated, the adopter manufactured by job worker are not saleable in the local market. These are only used in the manufacturing of head lights which are exported. 6. He has also pointed out the observations made by the first Appellate Authority which reads as under : - "4. In view of the above, the confiscation of the goods valued at Rs. 31,283/- recovered from the Auto Rickshaw without proper challan is correctly confiscated. Looking to the value of the goods, the quantum of redemption fine is also reasonable and the same is upheld. Further, I hold that the adjudicating authority has correctly demanded the duty on 1,86,335 pcs of adaptors were removed from their factory without maintaining proper accounts of the same, which has been admitted by the appellants and accordingly penalty is also imposable under Section 11AC of the Central Excise Act, 1944. Vide C.B.E. and C. Circular No. 354/118/96-TRU, dated 6-1-1997, it has been clarified that the Section 11AC ibid has the effect of imposition of a mandatory penalty which is equal to the amount of duty evaded and there is no discretion to the adjudicating authority to impose penalty less than or more than the amount of duty evaded. It is obligatory upon him to impose the mandatory penalty, once the adjudicating authority comes to the conclusion that the duty has been evaded and he determines the amount of duty so evaded. The Hon''ble Supreme Court in the cases of [(i)] Ranadey Micronutrients v. Collector - 1996 (87) E.L.T. 19 (S.C.) , (ii) Paper Products Ltd. v. Commissioner - 1999 (112) E.L.T. 765 (S.C.) and CCE v. Dhiren Chemicals - 2002 (139) E.L.T. 3 (S.C.) , and [(iii)] 1999 (143) E.L.T. 19 (S.C.) has held that the Revenue is bound by the directions made in the Circular. In view of the above, despite the decisions of the Hon''ble Tribunal in favour of the appellants, I am not inclined to accept appellants'' submissions. However, demand of interest under Section 11AB is set aside as the appellants is liable to pay interest from the first date of the month succeeding the month in which the duty ought to have been paid under this Act. However, demand of interest under Section 11AB is set aside as the appellants is liable to pay interest from the first date of the month succeeding the month in which the duty ought to have been paid under this Act. I find that the impugned order is silent regarding the month in which the duty ought to have been paid. The appellants have paid the duty of Rs. 5,005/- on 18-12-2000 and rest of amount of Rs. 1,08,820/- on 16-5-2001 i.e. before issue of the show cause notice/passing of the impugned order." 7. Taking into consideration the above, we are of the considered opinion that the observations made by the Tribunal is contrary to record and the matter is required to be remitted back to the Tribunal. It is made clear that the matter is remanded only on the ground that finding arrived at by the Tribunal is contrary to the record and the judgment which is relied upon by the appellant will be considered while deciding the matter afresh by the Tribunal. The Tribunal will not be influenced by the fact that the matter was earlier decided by it against the assessee. 8. The appeal stands disposed of.